Should telecommunications providers, which have access to vast amounts of behavioral information relating to subscribers, be able to use that information to sell advertising? Should the oversight authority for telecommunications providers enact sectoral privacy rules? Should telecommunications providers be subject to rules that are stricter than those in the Personal Information Protection and Electronic Documents Act (PIPEDA), which is a Canadian statute of general application? These are the questions being posed to the Canadian Radio-television Telecommunications Commission (CRTC) in an application brought by the Public Interest Advocacy Centre and the Consumers’ Association of Canada (collectively PIAC/CAC).

The application involves the practices of BCE, Bell Canada, Bell Mobility and Bell Alliant (collectively Bell Canada). Bell Canada is one of Canada’s largest vertically integrated telecommunications and broadcasting enterprises. It is a leading Internet service provider in Canada and has a large share of the wireline and wireless phone market. It is also a broadcaster over radio, television and digital media.

PIAC/CAC’s complaint arises out of changes to Bell Canada’s privacy notice announced in October 2013. Bell Canada advised customers that, beginning in mid-November 2013, it would use information about its customers for advertising purposes. The types of information used for this purpose includes App usage, location, web pages visited, TV viewing, calling patterns and other information associated with network usage as well as demographic information. Bell Canada uses the data to prepare reports to advertisers and also to deliver interest-based advertising. Customers could opt out of interest-based advertising but not the use of their information in aggregated form for advertising and other purposes.

Bell Canada argues that the ability to participate in the advertising ecosystem using customer information is important to allow it to compete with “world players like Google, Facebook and others in focused online information delivery.” Furthermore, the use of information in aggregated form without consent is not an uncommon practice.

Consumers are used to advertising as the quid pro quo for free content and services delivered over the Internet. However, unlike in-search, in-App or in-web page advertising based on the user’s activities with specific content or search providers, it is alleged that the Bell Canada program gathers information available to Bell Canada as the gateway to telecommunications services. Previously, the Office of the Privacy Commissioner of Canada (OPC) has raised concerns that online behavioral advertising “should not be considered a term or condition for individuals to use the Internet generally.” Some have argued that what is objectionable about the Bell Canada practice is that customers are already charged a subscription fee by Bell Canada to access wireless, Internet and broadcast services. In particular, PIAC/CAC argues that Bell Canada has placed itself in a conflict of interest because it has expanded “its role of providing telecommunications services to the public for compensation by pursuing a business model that also includes providing customer information for advertising and marketing services to the private sector.”

For its part, Bell Canada argues that the data being collected and used is “audience-based” rather than specific to particular individual customers. In other words, Bell Canada argues that it is only using aggregated information. It provides the following example:

For instance, a report that shows 10,000 Bell mobile customers downloaded a particular gaming app, and that 80% of them were 18-25 years old, would allow advertisers to build a marketing program to serve that broad group. Individual customer information is never released.

If customers opt out, they will continue to see “random” advertising rather than advertising based on the aggregated information collected in the example above.

Even though the OPC already announced an investigation into the issue, PIAC/CAC has turned to Canadian telecommunications policy in an attempt to limit the ability of Bell Canada to use personal information for third-party advertising purposes. PIAC/CAC argues that the collection and use of personal information for advertising by a telecommunications service provider is contrary to Canada’s telecommunications policy. This policy is set out in skeletal form in section 7 of the Telecommunications Act, which provides that the goals of Canada’s telecommunications policy are, among other things, to:

• facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions; and
• contribute to the protection of the privacy of persons.

In addition, section 36 of the Telecommunications Act provides that a Canadian carrier must not control the content or influence the meaning or purpose of telecommunications carried by it for the public exception where the CRTC approves otherwise. PIAC/CAC argues that, by collecting and using the subscriber information, including data about the subscriber’s behavior, other than for traffic management purposes, Bell Canada is entering the realm of influencing the meaning of and purpose of the telecommunications.

PIAC/CAC argues that the time is ripe for the CRTC to develop more detailed privacy rules for telecommunication carriers. If the CRTC agrees, this could represent one of the most important developments in the evolution of privacy law in Canada since the enactment of PIPEDA. The CRTC has broad authority over telecommunications and could develop more stringent protections for personal information than are included in PIPEDA. Furthermore, the CRTC has broader enforcement powers than those of the OPC.

Bell Canada’s position is that its program is fully compliant and allows customers to opt out of being targeted with interest-based advertising. Bell Canada states that it would never identify individual users or release non-aggregated data to advertisers or others. Indeed, if truly aggregated and de-identified, the information may not be personal information at all.

This complaint is definitely one to follow.